Mr X and Public Appointments Service

Whether the PAS was justified in refusing access to certain records concerning job competitions entered by the applicant

18 May 2020

Background

The applicant took part in a promotion competition in 2019 but failed to qualify in a particular exercise. In a request dated 16 November 2019, he sought access to “all [his] personal records and information” as held by the PAS in any form. In a decision dated 15 January 2020, the PAS part-granted the request, which covered 100 records. It fully and partially released most of the records. It withheld three records in full and eight records in part under section 30(1)(a) (examinations of an FOI body and procedures for examinations) and section 30(1)(b) (functions relating to management) of the FOI Act. It withheld parts of 17 records under section 37 (personal information of third parties). The applicant sought an internal review on 17 January 2020. On 7 February 2020, the PAS affirmed its decision on the request, relying on the exemption provisions set out above as well as sections 36(1)(a) (trade secrets) and 36(1)(b) (commercially sensitive information). On 20 February 2020, the applicant applied to this Office for a review of the PAS’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the PAS and the applicant. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the PAS’s decision on the applicant’s request was justified under the provisions of the FOI Act. Its decisions say that it has fully withheld records 12-14 and withheld parts of records 9, 10, 12-14, 25, 27-34, 44-46, 56, 58, 65, 70, 72, 73, 75, 80, 81, 96 and 97. However, I note from its schedule and the records provided to this Office, that it has also withheld details from record 99 under sections 30(1)(a) and (b) of the FOI Act (and presumably also sections 36(1)(a) and (b)).

This Office has no role in examining how the PAS carries out its functions generally.

Findings

It is useful at this point to outline the Commissioner’s approach to granting partial access to records. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions.

The PAS withheld parts of these records on the basis that they comprise personal information of identifiable individuals other than the applicant and are exempt under section 37(1) of the FOI Act.

The applicant says that he has been trying to get details of how he failed to qualify in the promotion exercise and also regarding his performance in comparison to other candidates. He says that, by redacting candidates’ numbers and other identifying details, the PAS should be able to give him details of a group of candidates for comparison purposes.

The PAS’s submission to this Office notes that the applicant’s request was confined to seeking access to all his personal records and information. It says that any details concerning other candidates are outside the scope of his request, even though it would also consider those details to be personal information for the purposes of section 37 of the FOI Act.

Amongst other matters, this Office’s Investigator told the applicant that this Office cannot consider whether he is entitled to access to records/parts of records that are not covered by his FOI request. The applicant says that he does not have a comprehensive knowledge of the FOI Act and feels that it is best to leave it to the Information Commissioner to consider the Investigator’s observations and all other facts of the case before arriving at a decision.

Having examined the details withheld from the above records, I agree with the Investigator’s view that with the exception of a small part of the information withheld from record 10, the withheld details comprise personal information about parties other than the applicant. I find as a matter of fact that this information is not covered by the applicant’s request. It follows that it is not covered by my review and I do not intend to consider it further.

Part of record 10

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. While I am required to limit the level of detail I can give in describing withheld details, as noted above I am satisfied that a small part of the information withheld from record 10 comprises information relating to the applicant and is covered by his request. However, I am also satisfied that this information is inextricably linked to information concerning third parties. I will consider whether, in the circumstances, this information is exempt under section 37(1) of the FOI Act.

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual. Having examined the relevant excerpt, I am satisfied that it comprises personal information relating to the applicant. However, I also accept that the excerpt contains personal information concerning other identifiable individuals that is inextricably linked to the personal information relating to the applicant.

Section 37(2)(a) provides for the grant of access to personal information relating to a requester. However, section 37(7) provides that, notwithstanding section 37(2)(a), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (i.e. joint personal information). I do not consider it feasible to separate out the information that relates solely to the applicant and so I find the relevant part of record 10 to be exempt under section 37(1) of the FOI Act.

The application of section 37(1) is subject to the consideration of sections 37(2) and (5). Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I have already outlined the provisions of sections 37(2)(a) and (7). While the excerpt comprises joint personal information, as outlined above, I do not consider that personal information relating to the applicant can be separated from that of other individuals. I am satisfied that the information does not fall for release further to section 37(2)(a) of the FOI Act in this case. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of the public interest, I have had regard to the comments of the The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

The applicant says that he spent five months trying to get information from the PAS which he feels he is entitled to receive and only made an FOI request when he could not get the information concerned. He believes that the PAS has misused the provisions of the FOI Act that it is relying on in this case in order to protect itself and its procedures from outside scrutiny and has not acted in accordance with its own Code of Practice. He feels that by refusing his FOI request the PAS is undermining the fundamental spirit and purpose of the FOI Act.

While I can appreciate why it is important to the applicant to obtain access to the relevant part of record 10, the above judgments make it clear that I cannot take into account his private interests in the grant of access to the withheld information. Furthermore, it is not appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is dissatisfied with the actions of the PAS.

As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

There is a public interest, which is recognised by the FOI Act, in establishing that the PAS carried out its functions, including in relation to the applicant, in a way that was consistent with the principles of natural and constitutional justice. This public interest is entitled to significant weight in this case. I accept that it would be served by granting access to the relevant part of record 10.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). It is relevant that release of records under FOI is equivalent to placing a record in the public domain. Having regard to the relevant details in record 10, I am satisfied that placing them in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant.

Having considered the matter carefully, I find that the public interest in favour of granting access to the relevant part of record 10 does not outweigh the public interest that the right to privacy of individuals other than the applicant should be upheld.

Records 12-14, 96 and 99 concern the 2019 competition. Records 12-14 comprise the interview board’s notes and scoring sheet, a presentation exercise in the form of a memo and the applicant’s rough work sheet. Record 96 is an email thread with attachments and record 99 is an appeal document. The PAS withheld parts of records 28-34 (attachments to emails), all of which concern a 2014 competition entered by the applicant. Of the exemptions relied on by the PAS in respect of these withheld details, I will consider section 30(1)(a) first.

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

In other words, the provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc. (i.e. the ability of the test, etc. to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.

The PAS says that Occupational Psychologists within PAS specifically designed the assessment questionnaire and presentation exercise to assess the suitability of candidates for the particular roles. It says that they were developed at significant expense and over a significant period of time. It says that it has not developed any alternative assessments. The PAS’s position is that releasing the records would give an insight into its assessment methods for the particular competitions and therefore undermine the effectiveness of those methods.

As noted earlier, the applicant says that the PAS is seeking to avoid scrutiny of the conduct, probity and fairness of its processes. He says that recruitment processes are constantly changing and being updated and that knowledge of the workings of the most up to date systems is available on the internet. He says that in such circumstances, releasing select details of the marking mechanisms for particular competitions is not going to seriously undermine their effectiveness. He says that disclosure of the details would further the maintenance of integrity, openness and natural justice. He says that the recruitment process for these competitions is over and that he would not gain any advantage over other candidates because, for reasons which he describes, he will not be using any of the information in future competitions. He also appears to be of the view there is a public interest in preserving the rights of candidates to have access to work submitted as part of a competition.

I do not accept that there is a true public interest on the lines of that described in the Rotunda judgment in ensuring that candidates can obtain access to work they submitted in the course of a competition. While I do not doubt the applicant’s bona fides, I have already explained that release of records under FOI is understood to be effectively the same as releasing them to the world at large. No limits or conditions can be imposed on the use of records released under FOI. It is clear to me from the PAS’s submission that it intends to use these assessment methods in the future. While it may be possible for candidates to use the internet to get an idea of what recruitment processes may be used by the PAS, this is different to a candidate knowing the parameters of a particular assessment in use and/or how his or her performance will be assessed. It is reasonable to accept that insight into those matters will enable candidates to plan their answers in advance, and thus reduce the effectiveness of the assessment processes as tools for identifying those best suited to a particular role.

I find that section 30(1)(a) applies to the withheld records and parts of records. This is subject to consideration of the public interest test at section 30(2) of the FOI Act. I agree with the applicant that disclosure of the records will promote the public interest in ensuring openness and accountability regarding how the PAS carried out the competitions to which the records relate and that this is entitled to significant weight in the circumstances. However, I also accept that there is a significant public interest in preserving the PAS’s ability to continue to conduct competitions in the way that it has been doing. It seems to me that removing this ability would require the PAS to develop further testing and assessment methods, which would be at a cost to the public purse.

Having considered the matter carefully, I find that the public interest in favour of granting access to the withheld records and parts of records does not outweigh the public interest in withholding them.

Other provisions relied on

Having regard to my findings above, there is no need for me to consider the PAS’s reliance on sections 30(1)(b) or 36(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the PAS’s decision on the basis that certain details are not covered by the request and that the rest are exempt under sections 37(1) and 30(1)(a) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.